Citation Nr: 1812387
Decision Date: 02/28/18 Archive Date: 03/08/18
DOCKET NO. 14-14 979 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Whether the Veteran's countable income is excessive for the payment of nonservice-connected pension benefits.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Nichols, Counsel
INTRODUCTION
The Veteran served on active duty from October 1974 to July 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in Milwaukee, Wisconsin - the Agency of Original Jurisdiction (AOJ) in this case, which informed the Veteran that his income, effective August 5, 2013, exceeded the applicable pension limit set by law, and therefore, further payments of nonservice-connected pension have been disallowed.
The Veteran was scheduled for a videoconference hearing at the Cincinnati, Ohio Regional Office in August 2017. He did not receive notice of his hearing and failed to attend.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, this means allowing the Veteran to submit additional evidence in support of his claim. This also means ascertaining a current mailing address and contact information for the Veteran, and insomuch as the Board is remanding this claim, obtaining clarification as to whether he would like to still be afforded a Board hearing is also in order.
The Veteran has attempted to substantiate his claim by sending to VA a medical invoice (versus receipt), which can help offset his countable income. However, the invoice is not the same as proof of payment for medical expenses paid out of pocket. The Board is providing the Veteran an opportunity to show proof that he actually paid these expenses.
Moreover, on one of the last pieces of correspondence received from the Veteran, he indicates the [REDACTED] address for his residence and provides a home telephone number for contact. See April 2014 Form 9. The [REDACTED] address is also listed on the TriHealth invoice that he submitted into evidence in May 2014. However, subsequent mailings from VA to the Veteran have been returned to sender from the U.S. Postal Service (noting "attempted - not known, unable to forward"), to include the June 2017 VA letter regarding certification to the Board, but more importantly, the July 2017 letter notifying the Veteran of the date, time, and location of his Board videoconference hearing. The Board notes that the Veteran's representative issued an Informal Hearing Presentation brief, but there was no mention of a hearing. Although cognizant that the duty to assist is not a one-way street and that the Veteran cannot sit idle and not provide VA with an updated address, he clearly did not receive any notice for the hearing. Insomuch as the Board is remanding for further evidence, the Board would also like to afford him an opportunity to clarify whether or not he would still like a hearing upon clarification of his new mailing address. The Board is compelled to afford the Veteran an opportunity to clarify, given that there have not been attempts to contact him by phone to obtain his new mailing address.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and obtain his new mailing address and contact information and update the systems of record accordingly.
2. Ascertain whether the Veteran would still like to be scheduled for a Board hearing and follow the proper protocol for hearing scheduling, if applicable.
3. Regardless of whether or not the Veteran is still seeking a Board hearing, send the Veteran a duty to assist letter or call the Veteran (and place a Report of Contact in the file) and ensure that he understands that to help substantiate his claim for nonservice-connected pension benefits, his medical invoice from TriHealth cannot suffice without proof of payment as evidence, which can be used to offset his countable income. Provide him with the information that he needs to submit such evidence to VA.
4. After the development requested above has been completed to the extent possible, the AOJ should again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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S.B. MAYS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).